A Supreme irony

Lawyers will tell you that the Supreme Court is supreme because it is the final court of appeal and not because it’s infallible. Unfortunately, the Supreme Court remains supreme and also, sadly, final even when it’s wrong. The only remedy to a poor judgement by the Court is a revision by the Court itself. And that happens rarely.

A chance reading of the newspapers last week revealed, with a bit of a shock, how easily the Court can make silly and avoidable mistakes. Last Monday, the Court refused to entertain a public interest litigation seeking to remove the word ‘socialist’ from the preamble of our Constitution. It was inserted during the Emergency by Indira Gandhi in a desperate bid to burnish her left-wing credentials. And there it’s stubbornly stuck.

The problem is that both then and now its presence in the preamble is a mistake. India is a democracy and free to choose whatever ideology its people vote for. Defining the country as a socialist democracy not only limits the freedom of its people to choose but, worse, constrains and restricts democracy itself. After all, capitalist democracies exist and are among the most successful in the world.

Alas, that’s not all. Even worse is that this is a mistake that enforces hypocrisy, if not duplicity, on many of our political parties. Under the Representation of People’s Act (Section 29-A) they are required to swear allegiance to the principle of socialism. That’s fine if they believe in it. But what if they don’t, as they have a right not to?

Well, they can either be honest and refuse in which case they won’t be registered by the Election Commission and, thereafter, can’t fight elections. That’s what’s happened to the Maharashtra Swatantra Party, Rajaji’s and Minoo Masani’s ideological heirs, who have been kept out since the 90s. Or they can ‘lie’ — yes, that’s the word — and continue to function and contest elections.

Clearly, this is a situation that needs an urgent remedy. The case is so obvious one would have thought the Supreme court would at once concur. But not only did it demur, look at its reasons for doing so. First, it said no political party had objected. So if they are prepared to lie, let them. Why make honest parties out of those who are used to this fib?

Second, the court said that although it was an important question of law, it’s an academic issue and there’s no urgency to tackle it. In other words, this is an error that can continue. Which means the court acknowledges something is wrong but desists from doing anything about it!

Now, if you go back to the historic debates when the Constitution was drafted, you will discover this issue was raised at the time. B.R. Ambedkar, the architect of the Constitution, strongly advised against defining India as socialist. The assembly agreed. Indira Gandhi altered that consensus. Today, although the Supreme Court seems to recognise it was a mistake, it either lacks the energy or the clear-headed vision to remedy the situation.

No doubt at one level this is a small issue. We’ve lived with it for 35 years and it hasn’t impeded the policies of economic liberalisation implemented since 1991. But it’s also a matter of principle. And principles are neither insignificant nor can they be deferred for a more convenient time. Surely the Court should have known this? But if it did not, perhaps it should consider disavowing the adjective supreme?